JANUARY & FEBRUARY IMMIGRATION NEWSLETTER

1. GUEST WORKER PROGRAM AND STRICTER IMMIGRATION ENFORCEMENT BOTH GAINING SUPPORT

The likelihood of a guest worker program has increased with several recent developments. A number of reports indicated that the Senate will address the immigration dilemma shortly.

President Bush has been advocating for a guest worker program and repeated his hopes for such a measure during his State of the Union address. In the week prior to his speech, the Republican National Committee overwhelming voted to support the President's efforts to implement a guest worker program, an additional signal that Congress may be approving such legislation soon.

It should be noted, however, that both the President's speech and the Republican National Committee's statements also expressed a need for stricter enforcement of immigration laws.

In late January, a coalition of both labor and business leaders announced their support of a guest worker program which would provide undocumented immigrants a path to permanent residency. The group also opposed the harsh immigration enforcement bill passed by the House.

2. NEW SPEAKER OF THE HOUSE POTENTIAL ALLY TO IMMIGRATION ADVOCATES

Representative John Boehner of Ohio was named the new Speaker of the House of Representatives in February 2, 2006. It should be noted that Representative Boehner was one of the few Republicans who opposed Rep. Sensenbrenner's harsh immigration enforcement bill, recent passed by the House. Boehner's main opponent, Roy Blunt, was a primary supporter of the Sensenbrenner bill.

3. PROPOSED RULE MAY ELIMINATE SUBSTITUTION FOR LABOR CERTIFICATIONS

The Department of Labor has issued a proposed rule which, if adopted, would prohibit the substitution of beneficiaries of labor certifications. It would also require employers to file a Form I-140 visa petition within 45 days of an approved application for labor certification. The rule, which the Department of Labor has indicated is in an attempt to lessen fraud, would impair the rights of many employers and employees.

The new rule is currently "proposed", meaning that it is not in effect, and that the Department of Labor is seeking comments before converting the proposed rule into a binding regulation. Comments will be accepted until April 14, 2006.

4. DREAM ACT PASSAGE UNLIKELY

According to a recent Wall Street Journal article, there is a growing debate about whether or not illegal immigrants should be granted in-state tuition benefits at state public universities.

One highly anticipated bill to address this issue was the DREAM Act. If passed, the DREAM Act would have allowed United States high school graduates who are here illegally the opportunity to apply for residency. A key sponsor of the bill, Senator Orrin Hatch withdrew his sponsorship saying that passage of the DREAM Act is not realistic.

5. ATTORNEY GENERAL TO REVIEW CONDUCT OF IMMIGRATION JUDGES AND BOARD OF IMMIGRATION APPEALS

In light of increasing criticism of the Office of the Immigration Judge and the Board of Immigration Appeals, the Attorney General will be conducting a comprehensive review of both agencies which are part of the Department of Justice. Recently, news reports and federal courts across the country have cited numerous instances in which foreign nationals in deportation or removal proceedings have been denied their due process rights to a fair hearing.

6. DHS EXPANDS EXPEDITED REMOVAL PROGRAM

On January 30th the Department of Homeland Security announced that it will implement expedited removal along the border with Canada and the coastlines. Expedited removal, which was previously only implemented along the Mexican border, provides much less procedural protection than regular removal proceedings. As the name suggests, expedited removal is a much faster process than standard removal proceedings, and those subject to expedited removal proceedings are rarely released into the United States.

Under the new system, any foreign national apprehended within fourteen (14) days of entry, and within one hundred miles of the Mexican or Canadian border (or, for those who arrived by ship, within 100 miles of the coast), may now be placed in expedited removal proceedings.

7. EXPEDITED CITIZENSHIP GRANTED TO 2006 OLYMPIAN AND WORLD SERIES WINNING MANAGER

In a somewhat controversial development, President Bush signed a measure allowing ice dancer Tanith Belbin to naturalize on December 30, 2005. The bill allowed Belbin to naturalize after being a resident after three years, instead of the usual five. By becoming a citizen, Belbin was eligible for the 2006 Winter Olympics to compete for the United States. She won a silver medal.

On January 20th, Ozzie Guillen was sworn in as a naturalized United States citizen, along with his wife and son. Guillen, who was born in Venezuela, played in the Major Leagues for sixteen seasons, and recently managed the Chicago White Sox to a World Series championship.

8. IMMIGRATION OFFICIALS CRITICIZED FOR HARSH TACTICS AND TREATMENT

Recently, Immigration and Customs Enforcement (ICE) was criticized for pretending to be federal occupational safety officials in an attempt to arrest illegal foreign workers. At a North Carolina Air Force base, workers were told to attend a mandatory meeting about occupational safety presented by the Federal Occupational Safety and Health Administration. In actuality, the officials were ICE agents, who arrested the attendees accused of living and working in the United States illegally.

9. BUDGET ADDITION TO ENFORCEMENT/GUEST WORKER BILL

Another sign of the administration's push for tighter enforcement combined with a guest worker program is the newly released Department of Homeland Security budget. Despite cuts in a number of other federal agencies, the DHS budget for the 2007 fiscal year was increased approximately 6 percent.

In that increased budget, funds were allocated both to strengthen the border patrol, while other money is earmarked to implement a guest worker program.

10. TPS EXTENDED FOR NATIONALS OF EL SALVADOR, HONDURAS, NICARAGUA

Citizens of El Salvador, Honduras and Nicaragua who are beneficiaries of Temporary Protected Status (TPS) will have the opportunity to renew their status for another year.

TPS beneficiaries are allowed employment authorization, travel documents, and protection from deportation. The government decides to grant, and frequently extend, TPS to nationals of those countries which have been severely harmed by civil strife or natural disasters.

11. STATE DEPARTMENT CLARIFIES ISSUES OF STUDENT VISA VALIDITY AFTER BREAKS IN STUDIES

An ongoing concern for student (F-1) visa holders is whether their visas remain valid after a break in studies. Recently the Department of State clarified the issue somewhat.

Students in the U.S. who finish one course of study and wish to transfer to another will automatically fall out of status if they do not resume studies with the new school or program within five months.

For students enrolled in schools who leave the U.S. for a break in studies, their student visas will be invalidated after an absence over five months. In that case, the student would need to apply for a new F-1 visa.

It should be noted, however, that students who go abroad for activities related to the course of their studies are not considered out of status and their visas will remain valid even after a five month absence.

12. USCIS EXTENDS VALIDITY OF MEDICAL EXAMS FILED WITH ADJUSTMENT OF STATUS APPLICATIONS

Medical examinations filed with applications for adjustment of status to lawful permanent resident will remain valid even if they were filed over a year ago. Traditionally, the medical exams required with each residency application have been only valid for a year.

Because many adjustment of status applications have been pending for over a year, USCIS began a temporary program in December, 2004 extending the validity of all medical exams filed together with adjustment of status applications through the adjudication of the application. That policy expired January, 2006, but CIS renewed it through January, 2007.

Applicants for lawful permanent residency have long been required to submit a medical examination. Traditionally, those exams are valid for one year.

13. U.S. ISSUES VISA AND APOLOGY TO SCIENTIST

The United States apologized and granted a visa to Prof. Goverdhan Mehta, an internationally recognized organic chemist and president of the Paris-based International Council for Science (ICSU), who had been invited to a conference by the University of Florida, after he was refused entry on charges of hiding information that could be used for chemical weapons. The ICSU called the tough rules for granting U.S. visas to scientists after the Sept. 11, 2001, attacks as "outrageous" and termed the way Mr. Mehta was treated by the U.S. Consulate in Chennai as "hostile."

14. MISCELLANEOUS

A) H-1B application will be accepted by USCIS commencing April 1st for a starting date of Oct. 1, 2006. It is anticipated that demand for the 65,000 available H-1B's will be very strong and numbers will be depleted quickly. Hence, it is recommended that applications be filed as soon as possible.

B) Pending Adjustment Applicants - USCIS has announced that delays continue with many employment-based adjustment of status applications filed in accordance with Section 245i (April 30, 2001 rule). Many applications have been pending for several years and files have been transferred from the Vermont Service Center (VSC) to the local district offices, back to the VSC, and back again to the district offices for future interviews.

C) Adjustment of Status Alert - USCIS has announced that as of March 1, 2006, in the event that all required documents are nor presented at the time of an adjustment interview the case will be denied. Previously, CIS examiners provided applicants the opportunity to submit missing documents after the interview.

D) The March 2006 Visa Bulletin can be accessed by visiting: http://travel.state.gov/visa/frvi/bulletin/bulletin_2805.html